SSV Licence Agreement
Squiz Supported Version Licence Agreement
Please READ this Squiz Supported Version licence agreement (SSV) carefully before DOWNLOADING, INSTALLING or USING the Software.
The terms of this Licence constitute an agreement between you, either an individual or a company or similar entity, as the purchaser or user of the Software (hereafter “You”) and Squiz Pty Ltd ABN 77 084 670 600 (hereafter “Squiz”). This Licence applies to the Software, Documentation and any updates which have been provided for the Software.
By DOWNLOADING, INSTALLING or USING the Software, You are agreeing to be bound by the terms of this Licence. If you do not agree to all the of the terms of this Licence then DO NOT DOWNLOAD, INSTALL or USE the Software
1. Definitions & Interpretations
1.1 Definitions
(a) Commencement Date means the date on which the Software was purchased or was installed into the Your system, whichever occurs first.
(b) Confidential Information means information of a Party that:
(i) is by its nature confidential; or
(ii) is designated by that Party as confidential; or
(iii) the other Party knows or ought to have known is confidential,
including, without limitation, information relating to:
(iv) the source code, design, specification and content of the Software; and
(v) the personnel, policies or business strategies of Squiz; and
(vi) the terms upon which the Software is being licensed under this Agreement.
but does not include
(vii) information already known to the receiving party at the time of disclosure by the other party; or
(viii) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;
(c) Documentation means any technical and user information relating to the Software provided by Squiz.
(d) Instance means a single installation of the Software on a system capable of running it. Every Instance of the Software is characterised by a file named “main.inc”, which is created at the time of the installation.
(e) Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights existing in Australia, whether created before, on or after the commencement date of this Agreement;
(f) Internal Testing means the use of the Software by You internally only and only for the purposes of testing and evaluating the Software. Use of the Software on systems deployed to a production environment is expressly excluded from this definition.
(g) Licence means the licence of software granted pursuant to this Agreement.
(h) Purchase Fee means the fees payable by You to Squiz for the Software.
(i) Related Bodies Corporate has the same meaning as in the Corporations Act 2001 (Cth).
(j) Service Level Agreement means an agreement entered into between You and Squiz where Squiz will provide warranty and support services for the Software.
(k) Software means MySource Matrix CMS and MySource Matrix Modules.
(l) Squiz Authorised Representative means a party with written authorisation by Squiz to market and sell the Software.
(m) Third Party means any party other than You or Squiz and includes Related Bodies Corporate.
(n) You means the individual, company or other entity, but does not include Related Bodies Corporate, who has purchased the Software from Squiz and has installed the Software into their system in accordance with the terms of the Licence granted in this Agreement.
(o) Warranty Key means the digital code provided to You by Squiz, which contains information about the warranty given by Squiz for the Software.
(p) Warranty Period means the period for which you have purchased warranty services from Squiz and is encoded in the Warranty Key.
1.2 Presumptions and interpretation
Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa; and
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a government.
Unless the context otherwise requires a reference to
(d) any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; and
(e) any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced; and
(f) a group of persons includes any one or more of them; and
(g) a thing or amount is a reference to the whole and each part of it.
2. Licence Grant
2.1 Subject to the terms of this Agreement, Squiz grants You a limited, non-exclusive and non-transferable licence to
(a) Use one (1) Instance of the Software for any purpose; and
(b) Use the Software for the sole purpose of Internal Testing; and
(c) modify the Software; and
(d) Use the Documentation.
For the avoidance of doubt, “Use” means application and operation by You only.
3. Duration
3.1 This Agreement and the Licence granted herein commences on the Commencement Date.
3.2 Subject to the terms of this Agreement, the Licence shall continue into perpetuity.
4. Conditions of Licence
4.1 You must not, and must not allow or cause any other person to:
(a) lease, license, disclose, distribute, provide or otherwise make available all or any part of the Software or Documentation to any Third Party, except as otherwise expressly permitted in this Agreement; or
(b) use the Software or Documentation to develop, enhance, modify, market or demonstrate products that are competitive with Squiz’s products and the Software; or
(c) alter, change, obscure or remove any logo, copyright or other proprietary notices, symbols or labels in the Software or Documentation.
4.2 You must not have received the Software from a party other than Squiz or a Squiz Authorised Representative.
4.3 You must immediately notify Squiz if You become aware of any breach of this agreement and must give Squiz all necessary assistance in connection with any proceedings Squiz may institute relating to such breach.
4.4 This clause will survive the termination of this Agreement.
5. Charges
5.1 You agree to pay the Purchase Fee within twenty-one (21) days of receiving an invoice from Squiz.
5.2 Squiz may, at its sole discretion, defer your obligation to pay the Purchase Fee if You enter into a Service Level Agreement with Squiz. For the avoidance of doubt, upon termination or expiration of your Service Level Agreement with Squiz, you will be obligated to pay the Purchase Fee in accordance with clause 5.1
5.3 All taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement will be borne by You.
5.4 Any amounts paid by You under this Agreement include Goods and Services Tax (GST) for supplies which are taxable supplies within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (“the GST Act”).
5.5 In relation to taxable supplies made under this Agreement, Squiz agrees to provide you with either:
(a) A tax invoice in accordance with the GST Act; or
(b) A document satisfying the minimum information requirements of the Australian Taxation Office to entitle a recipient of a taxable supply to claim an input tax credit without holding a tax invoice.
6. Ownership
6.1 You acknowledge that Squiz retains ownership of the Software and Documentation, and all proprietary rights in the Software and Documentation, whether in its original form or as modified by You during the term of the Licence.
6.2 You agree all Intellectual Proprietary Rights in the Software and Documentation are and shall remain the exclusive property of Squiz and any of its third party suppliers
6.3 Unless expressly permitted in this Agreement, You must not to use any of Squiz’s or its third party suppliers’ intellectual property without Squiz or its third party suppliers’ prior written consent.
6.4 Nothing in this Agreement should be construed as transferring any aspects of such rights mentioned in this clause to You or any Third Party. Squiz reserves any and all rights not expressly granted herein.
7. Modifications
7.1 Subject to this clause 7, You may alter, modify or add to the Software (‘Modifications’).
7.2 You must not lease, license, disclose, distribute, provide or otherwise make available all or any part of the Modifications to any Third Party, except as otherwise expressly permitted in this Agreement.
7.3 You agree to fully indemnify and hold harmless Squiz against any liability incurred if the Modifications made by You infringe the intellectual property rights of a Third Party.
7.4 This Agreement shall continue to apply to the Software as modified by You.
8. Confidentiality
8.1 You agree not to disclose Squiz’s Confidential Information.
8.2 You will not be in breach of clause 8.1 in circumstances where You are legally compelled to disclose Squiz’s Confidential Information.
8.3 You will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
8.4 This clause will survive the termination of this Agreement.
9. Support
9.1 This Agreement does not create an obligation for Squiz to provide You with updated versions of the Software or support and upgrade services relating to the Software.
9.2 You may request support and upgrade services from Squiz, which will be charged by Squiz to You. Such requests shall be dealt with in an agreement separate to this Agreement.
10. Termination
10.1 This Agreement and the Licence granted herein shall terminate upon the happening of any of the following events:
(a) You fail to comply with any of the terms and conditions of this Agreement;
(b) You have received the Software from a party other than Squiz or a Squiz Authorised Representative;
(c) Squiz provides You with another licence, and You agree to be bound by its terms; or
(d) You, if You are a company, become liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily; or
(e) You and Squiz agree, in writing, to terminate this Agreement.
10.2 On termination, You must immediately cease use of the Software and return to Squiz all copies of the Software, all revisions, enhancements and upgrades of the Software and the Documentation. Alternatively, if Squiz requests, You must destroy such Software, copies, revisions, enhancements and upgrades and must certify in writing to Squiz that they have been destroyed.
11. Warranty
11.1 Squiz warrants that as at the date of this Agreement it has the rights, power and authority to enter into this Agreement and to grant the Licence.
11.2 Subject to the following clause 11.3, Squiz warrants that for the Warranty Period, the Software will operate substantially in accordance with the Documentation. If during this Warranty Period the Software fails to operate substantially in accordance with the Documentation, Squiz will supply another copy of the Software at its cost.
11.3 The warranty provided in the preceding clause 11.2 is subject to a separate agreement entered into between You and Squiz.
11.4 Except as expressly warranted above, Squiz does not warrant or make any representations:
(a) that the Software is suitable for Your use, or is fit for any other purpose; or
(b) that operation of the Software will be-uninterrupted or that the Software is error-free; or
(c) regarding the results of any use of the whole or any part of the Software; or
(d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Software.
12. Indemnity
12.1 You hereby agree to indemnify, defend and hold Squiz, its directors, officers, employees and affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred, in connection with or arising out of Your:
(a) violation or breach of any term of this Agreement or any applicable law, regulation, policy or guideline, whether or not referenced in this Agreement; or
(b) violation of any rights of any Third Party; or
(c) use or misuse of the Software.
12.2 This clause will survive the termination of this Agreement.
13. Exclusions and Limitation of Liability
13.1 Squiz makes no express or implied warranties under this Agreement, except under clause 11 (Warranty).
13.2 To the extent permitted by law, Squiz excludes:
(a) from this Agreement all conditions, warranties and terms implied by statute, general law, international convention or custom;
(b) all liability to You in contract for consequential or indirect damages arising out of or in connection with this Agreement even if:
i. Squiz knew they were possible; or
ii. they were otherwise foreseeable
including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party.
(c) all liability to You in contract for direct or consequential or indirect damages arising out of or in connection with the use or inability to use the Software or Documentation including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party; and
(d) all liability to You in negligence or other non-contractual cause of action in respect of which liability can be excluded for acts or omissions of Squiz, its employees, agents and contractors arising out of or in connection with this Agreement.
13.3 Squiz’s liability to You for breach of
(a) any express provision of this Agreement is limited to the amount paid by You in Licence fees.
(b) any implied condition or warranty where the exclusion of which would contravene any statute or cause this clause 13 to be void, is limited, at the option of Squiz, to one or more of the following:
i. the replacement of the Software or Documentation
ii. repair of such Software or Documentation
14. General Terms
14.1 Governing law
This Agreement shall be governed by, and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the courts and tribunals of the State of New South Wales, Australia.
14.2 Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
14.3 No reliance on other matters
Each of the parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance except those set out in this Agreement.
14.4 New Versions of the Agreement
Notwithstanding clause 14.5 below, Squiz reserves the right to modify this Agreement at any time by providing such revised Agreement to You. Your continued use of the Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
14.5 Amendment of Agreement
No amendment to or modification of this Agreement shall be binding unless in writing and signed by both parties.
14.6 Assignment
You must not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Squiz.
14.7 Severability
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law; that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
14.8 Waiver
A waiver by either party in respect of a breach of a provision of this Agreement by the other party shall not be deemed to be a waiver in respect of any other breach and the failure of either party to enforce at any time a provision of this Agreement shall in no way be interpreted as a waiver of such provision.
